PSC Asks SCOTUS to Protect Contractor Rights
The Professional Services Council filed an amicus brief with the Supreme Court to reaffirm the important, long-standing, and broad doctrine of derivative sovereign immunity—that a company cannot be sued by a private party in connection with the performance of a federal government contract if sovereign immunity would bar a similar suit filed directly against the United States.
“This case gives the Supreme Court an opportunity to correct the narrow minority view of the Ninth Circuit regarding the scope of the protections afforded federal contractors that are performing within the scope of their contractual relationship with the U.S. government,” said Alan Chvotkin, PSC’s executive vice president and counsel. “Given the broad range of contractual services provided to the United States government by contractors, from the battlefield to disaster recovery sites and both domestically and internationally, this case gives the Supreme Court the opportunity to reaffirm a broad and robust derivative sovereign immunity doctrine.”
Sovereign immunity exists because it is in the public interest to protect the exercise of certain governmental functions, the brief explains. Since 1940, the Supreme Court and lower federal courts have recognized that contractors acting within the scope of their work for the U.S. government are also afforded immunity from suit wherever sovereign immunity would bar a suit if the work had been performed by the government itself. However, the U.S. Court of Appeals for the Ninth Circuit held that this derivative sovereign immunity (DSI) is only available for property damage claims in connection with certain public works project. This case, Campbell-Ewald Co. v. Gomez, involves a contractor that helped the U.S. Navy conduct a recruitment campaign involving sending out text messages to a target group of prospective volunteers.
“The Supreme Court should hold that DSI applies where a damages claim arises out of services performed by a federal government contractor and a similar claim, if filed directly against the United States, would be barred by sovereign immunity,” Chvotkin said. “The derivative sovereign immunity afforded to contractors under this standard should be equivalent to the federal government’s own sovereign immunity.”
Another issue in this case that is addressed in the brief is the question of whether a proposed class action can proceed if the named plaintiff was offered but rejected full relief. The brief argues that the U.S. Constitution’s Article III “case-or-controversy” requirement would be violated if a class action were to be certified under those circumstances.
PSC was joined on the brief by DRI—The Voice of the Defense Bar, an organization dedicated to maintaining fairness in the civil justice system. The Supreme Court will decide the case, Campbell-Ewald Co. v. Gomez, No. 14-857, during its October 2015 term. A copy of the brief is available here. Lawrence S. Ebner and Lisa Norrett Himes of Dentons US LLP represented PSC and authored the amicus brief in this case.
PSC is the voice of the government technology and professional services industry. PSC’s nearly 400 member companies represent small, medium, and large businesses that provide federal agencies with services of all kinds, including information technology, engineering, logistics, facilities management, operations and maintenance, consulting, international development, scientific, social, environmental services, and more. Together, the trade association’s members employ hundreds of thousands of Americans in all 50 states. Follow PSC on Twitter @PSCSpeaks and @StanSoloway.
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